135 Mass. 550 | Mass. | 1883
The important question to be determined in . this case is the meaning of the word “ street ” in the Pub. Sts. c. 112, § 169, which prohibits a railroad corporation from negligently obstructing or unnecessarily occupying “ a highway, town way, or street.”
The determination of this question may be aided by ascertaining the sense in which the Legislature has used the word in other statutes.
As early as 1667, a committee was appointed by the General Court, “ to bring in an effectual order for keeping in good repair all streets and highways, for the safety and comfort of travellers and passengers.” 4 Mass. Col. Rec. pt. ii. 350.
In the Prov. St. of 1692-3 (5 W. & M.) c. 13, § 2; 1 Prov. Laws (State ed.) 42; the justices of the peace and selectmen of Boston are authorized “ to state and lay out such streets, ways and passages as may be most for the conveniency and accommodation of the place.” The Prov. St. of 1698 (11 W. III.) c. 2; 1 Prov. Laws (State ed.) 311; is a statute to prevent encroachments “ upon the common roads, highways, and streets heretofore laid out in several towns within this Province.”
The Pub. Sts. c. 14, § 123, provide that certain troops shall have the right of way in any “ street or highway through which
We have cited a sufficient number of instances to show that the word “ street ” is commonly used in the statutes to designate a public way, — either a highway or town way, or a way which has become public by dedication or prescription. The statute in question is a penal statute, and is to be construed strictly. We see no reason to suppose that the Legislature meant to use the word “ street ” in this statute in any different sense from that in which it has obviously used it in the instances we have cited. It can hardly be supposed that it was
We see nothing in the exceptions which necessarily leads to the conclusion that Crescent Street is more than a private way. At most, it could not be held, as matter of law, under the facts, to be a public way. Under our construction of the statute, unless it was a public way, the defendant was not guilty.
JUxeeptions sustained.